R S TUTEJA Vs. CHANDRA PRAKASH RETD

JUDGEMENT

(1.) Respondent No. 1., Lt. Col. Chandra Prakash (Retd.), had filed a complaint against the petitioner, Ex. Capt. R.S. Tuteja, under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. By Judgment dated 20.5.1998 the petitioner was convicted by the trial court and by order dated 27.5.1998 of the trial court the petitioner was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 2 lakhs. Aggrieved by the judgment dated 20.5.1998 and the order of sentence dated 27.5.1998 the petitioner filed an appeal under Section 374 of the Criminal Procedure Code in the Sessions Court on 11.6.1998. The said appeal (Criminal Appeal No. 31/98) was filed by the petitioner without waiting for the certified copy of the impugned judgment/order of the trial court. But along with the appeal the petitioner had filed true copy of the impugned judgment/order. The petitioner had also filed an application for exemption from filing certified copy of the impugned judgment/order. The appeal was fixed for arguments on 12.4.1999 on which date one proxy counsel appeared for the appellant and on his request the case was adjourned to 13.7.1999 for arguments. But on 13.7.1999 there was no appearance on behalf of the appellant and, therefore, the learned Additional Sessions Judge heard the counsel for the respondent and the Additional Public Prosecutor and the case was adjourned to 17.7.1999 for pronouncement of the judgment. On 17.7.1999 the learned Additional Sessions Judge dismissed the appeal holding that the appeal was incompetent since certified copy of the impugned judgment/order had not been filed by the appellant and no order had been passed by the Court dispensing with the filing of the certified copy of the impugned judgment/order. Even though the petitioner filed an application for restoration of the appeal, the said application also was rejected by the learned Additional Sessions Judge on 6.9.1999. In the order dated 6.9.1999 the learned Additional Sessions Judge observed that the appeal had been dismissed not on merits but on account of the failure to file certified copy of the impugned judgment/order of the trial court. According to the learned Additional Sessions Judge there is no provision in the Criminal Procedure Code for re-hearing of the appeal which was rejected for non-filing of the certified copy of the impugned judgment.

(2.) Aggrieved by the above mentioned orders dated 17.7.1999 and 6.9.1999 of the learned Additional Sessions Judge the petitioner has filed this petition under Section 482 of the Criminal Procedure Code praying that the impugned orders dated 17.7.1999 and 6.9.1999 of the learned Additional Sessions Judge may be set aside and the learned Additional Sessions Judge may be directed to hear the appeal on merits. On 2.10.1999 this Court issued notice of this petition to the respondents and notice has been served on the respondents. By an order dated 11.11.1999 passed in Crl.M. No. 10191/99 the petitioner was granted interim bail till 16.11.1999.

(3.) The main contention of the learned counsel for the petitioner is that the appeal was not liable to be dismissed by the Additional Sessions Judge on the ground that certified copy of the impugned judgment/order had not been filed. Along with the appeal the appellant had filed a true copy of the impugned judgment/order and he had also filed an application for exemption from filing the certified copy of the impugned judgment/order. However no order had been passed by the learned Additional Sessions Judge granting exemption. According to the learned counsel for the petitioner the trial court records were before the appellate court and they contained the original of the impugned judgment/order and, therefore, the appellate court should not have dismissed the appeal on the ground that certified copy of the impugned judgment/order had not been produced by the appellant.